ECSGA October 2022 Newsletter

Why Best Practices? How
Do They Differ From
Laws and Regulations?
by Robert Rheault,
ECSGA Executive Director
A “best practice” (often called a best management
practice or BMP) is broadly defined
as a technique or methodology that, through
experience and testing, reliably leads to a
desired result. Best practices differ from laws
and regulations in many ways, and each has
its pros and cons. Regulators often find that
laws and regulations can be too inflexible,
while best practices can offer a better way to
get the regulated community to do the right
thing. Best practices are typically voluntary,
and while it might seem counter-intuitive,
they are often more effective at obtaining
compliance than laws and regulations.
Best practices are quite different from laws,
regulations and guidance. Laws are passed
by the legislature and define the goals and
objectives of government, usually providing
justification and policy directives, and often
dictating a range of appropriate penalties.
Regulations are drafted by agencies to dictate
precisely how to enforce the broader goals of
the laws, and are typically drafted through a
rule-making process that solicits public comment.
And lastly, guidance is often offered
by the agencies to help the regulated community
understand the regulations and offer
advice on compliance. Guidance does not require
rulemaking and is typically not legally
binding and does not have the “force of law”
behind it. Laws and regulations
usually cover requirements that
ensure public safety and protection
of natural resources and
private property. They rely on
enforcement officers and penalties
ranging from fines to permit
suspension to incarceration.
Industry best practices are usually
formed through a consensus-driven
process by industry
members who recognize that
regulations and enforcement
don’t adequately cover all of the
things that growers should and
could be doing. Best practices are
enforced by peer pressure and expectations
that industry members
comply with certain “norms” for
the benefit of the industry as a
whole. Occasionally, best practices
will be adopted as regulations.
(Florida has adopted BMPs as
regulations, but in my mind they
are no longer best practices—they
are now regulations.)
Aquaculture is broadly regulated
by a variety of agencies charged
with enforcing dozens of applicable
laws. Often a law will
mandate that an agency seek
opinions or approval from other
agencies before it can permit an activity. For
instance, the Army Corps of Engineers has
the authority to regulate structures placed in
the navigable waters of the U.S. It examines
aquaculture applications based on issues
related to navigation, and seeks comment
from NOAA’s Protected Resources Division
and the Department of Interior’s Fish and
Wildlife Service related to compliance with
the Marine Mammal Act, Migratory Species
Act, Magnuson Stevens Act, Endangered
Species Act, the EPA’s Clean Water Act, and
many others.
Shellfish farming, harvest and sales are
regulated by the FDA under laws described
in the Federal Food, Drug, and Cosmetic
Act, which sets regulations for the states
under the auspices of the Interstate Shellfish
Sanitation Conference (ISSC). Each state
is required to implement the regulations of
the National Shellfish Sanitation Program
(NSSP) by monitoring harvest area water
quality, enforcing harvest restrictions, implementing
tagging and traceability requirements,
inspecting dealer facilities and tracking
landings and illnesses. States generally
delegate their regulatory authority under the
NSSP to their Health Departments, Departments
of Agriculture, and/or resource
management agencies, and then the FDA
monitors each state’s compliance.
Which is better at winning compliance?
Since regulations are developed from the top
down, they are often despised by the regulated
community, who spend an inordinate
amount of time and creative energy devising
ways to skirt the regulations and avoid
detection. Furthermore, since regulations
depend on enforcement, it is often the case
that there can never be an adequate enforcement
presence to achieve the stated goals.
The cost of maintaining an adequate police
presence is often unsustainable or simply
impractical. Some scofflaws perceive the
chances of being caught as insignificant, or
view the severity of the penalty as a cost of
doing business.
Since best practices are developed from the
ground up by industry groups deciding what
is best for the greater good, they often have a
better track record of compliance. Best practices
rely on peer pressure instead of enforce-
— Continued on page 6
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